Venice, 22 June 2007
CDL-AD(2007)028
Or. Engl.
Opinion No. 403 / 2006
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
JUDICIAL APPOINTMENTS
Report adopted by the Venice Commission
at its 70th Plenary Session
(Venice, 16-17 March 2007)
This document will not be distributed at the meeting. Please bring this copy.
http://www.venice.coe.int
CDL-AD(2007)028
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Table of contents
Introduction .......................................................................................................................................2
Appointment system .......................................................................................................................2
The elective system ....................................................................................................................3
Direct appointment system........................................................................................................4
The role of a judicial council in the appointment procedure..................................................5
Composition of a high judicial council .........................................................................................6
Chair of the Council.........................................................................................................................8
Appointment basis...........................................................................................................................8
Appointment for a probationary period........................................................................................9
Conclusions ....................................................................................................................................10
1. The Venice Commission adopted the present report at its 70th Plenary session (Venice, 1617 March 2007) as a contribution to the elaboration of opinion no. 10 of the Consultative
Council of European Judges (CCJE) on structure and role of judicial councils, as provided for in
the Terms of Reference of the CCJE for 2007 (CCJE (2007) 2, point 4.i), which requests the
CCJE to consult on this opinion with the Venice Commission. The Commission presented its
report at the meetings of the Working Party of the CCJE (CCJE-GT) in Rome (28-29 March
2007) and in Graz (25-26 June 2007).
Introduction
2. Choosing the appropriate system for judicial appointments is one of the primary challenges
faced by the newly established democracies, where often concerns related to the
independence and political impartiality of the judiciary persist. Political involvement in the
appointment procedure is endangering the neutrality of the judiciary in these states, while in
others, in particular those with democratically proved judicial systems, such methods of
appointment are regarded as traditional and effective.
3. International standards in this respect are more in favour of the extensive depolitisation of
the process. However no single non-political “model” of appointment system exists, which could
ideally comply with the principle of the separation of powers and secure full independence of
the judiciary.
Appointment system
4. Principle I.2.c of Recommendation No. R (94) 12 of the Committee of Ministers of the
Council of Europe) states “All decisions concerning the professional career of judges should be
based on objective criteria, and the selection and career of judges should be based on merit,
having regard to qualifications, integrity, ability and efficiency. The authority taking the decision
on the selection and career of judges should be independent of the government and the
administration. In order to safeguard its independence, rules should ensure that, for instance,
its members are selected by the judiciary and that the authority decides itself on its procedural
rules. However, where the constitutional or legal provisions and traditions allow judges to be
appointed by the government, there should be guarantees to ensure that the procedures to
appoint judges are transparent and independent in practice and that the decisions will not be
influenced by any reasons other than those related to the objective criteria mentioned above.”
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5. In some older democracies, systems exist in which the executive power has a strong
influence on judicial appointments. Such systems may work well in practice and allow for an
independent judiciary because the executive is restrained by legal culture and traditions, which
have grown over a long time.
6. New democracies, however, did not yet have a chance to develop these traditions, which
can prevent abuse. Therefore, at least in new democracies explicit constitutional
provisions are needed as a safeguard to prevent political abuse by other state powers in
the appointment of judges.
7. In Europe, methods of appointment vary greatly according to different countries and their
legal systems; furthermore they can differ within the same legal system according to the types
of judges to be appointed.1
8. Notwithstanding their particularities appointment rules can be grouped under two main
categories.2
The elective system
9. In elective systems, judges are directly elected by the people (this is an extremely rare
example and occurs at the Swiss cantonal level) or by the Parliament (the method is used to
elect judges at the Swiss federal level and in Slovenia; in Ukraine, the Verkhovna Rada of
Ukraine is entitled to elect all other judges than professional ones). This system is sometimes
seen as providing greater democratic legitimacy, but it may also lead to involving judges in the
political campaign and to the politisation of the process.
10. The involvement of parliament in the process may result in the politicisation of judicial
appointments. In the light of European standards the selection and career of judges should be
“based on merit, having regard to qualifications, integrity, ability and efficiency”.3 Elections by
parliament are discretionary acts, therefore even if the proposals are made by a judicial council,
it cannot be excluded that an elected parliament will not self-restrain from rejecting candidates.
Consequently, political considerations may prevail over the objective criteria.
11. The Venice Commission found that “the parliament is undoubtedly much more engrossed
in political games and the appointments of judges could result in political bargaining in the
parliament in which every member of Parliament coming from one district or another will want to
have his or her own judge”.4
12. Appointments of ordinary judges are not an appropriate subject for a vote by
Parliament because the danger that political considerations prevail over the objective merits of
a candidate cannot be excluded.
1
Due to the special functions of constitutional courts judges and their increased need for democratic legitimacy
in order to annul acts of the Parliament, which represents the sovereign people, the procedure for their
appointment is often different from the appointment of judges of ordinary courts, to which the present paper refers
(see “The Composition of Constitutional Courts”, Science and Technique of Democracy, no. 20).
2
The examples given in the present paper exemplify the points made and do not intend to be exhaustive. The
information provided is mainly based on constitutional provisions in respect of the organisation of the judiciary.
3
Recommendation No. R (94)12 of the Committee of Ministers of the Council of Europe on the independence,
efficiency and the role of judges.
4
Venice Commission, Opinion on the Draft Law on Judicial Power and Corresponding Constitutional
Amendments of Latvia, CDL-AD (2002) 26, para. 22.
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Direct appointment system
13. In the direct appointment system the appointing body can be the Head of State. This is the
case in Albania, upon the proposal of the High Council of Justice; in Armenia, based on the
recommendation of the Judicial Council; in the Czech Republic; in Georgia, upon the proposal
of the High Council of Justice; in Greece, after prior decision of the Supreme Judicial Council; in
Ireland; in Italy upon the proposal of the High Council of the Judiciary5; in Lithuania, upon the
recommendations submitted by the “special institution of judges provided by law”; in Malta,
upon the recommendation of the Prime Minister; in Moldova, upon proposal submitted by the
Superior Council of Magistrates; in the Netherlands at the recommendation of the court
concerned through the Council for the Judiciary; in Poland on the motion of the National
Council of the Judiciary in Romania based on the proposals of the Superior Council of
Magistracy; in the Russian Federation judges of ordinary federal courts are appointed by the
President upon the nomination of the Chairman of the Supreme Court and of the Chairman of
the Higher Arbitration Court respectively - candidates are normally selected on the basis of a
recommendation by qualification boards; in Slovakia on the basis of a proposal of the Judiciary
Council; in Ukraine, upon the proposal of the High Council of Justice.
14. In assessing this traditional method, a distinction needs to be made between parliamentary
systems where the president (or monarch) has more formal powers and (semi-) presidential
systems. In the former system the President is more likely to be withdrawn from party politics
and therefore his or her influence constitutes less of a danger for judicial independence. What
matters most is the extent to which the head of state is free in deciding on the
appointment. It should be ensured that the main role in the process is given to an independent
body – the judicial council. The proposals from this council may be rejected only exceptionally,
and the President would not be allowed to appoint a candidate not included on the list
submitted by it.6 As long as the President is bound by a proposal made by an
independent judicial council (see below), the appointment by the President does not
appear to be problematic.
15. In some countries judges are appointed by the government (in Sweden “appointments to
posts in courts of law … shall be made by the Government or by a public authority designated
by the Government”). There may be a mixture of appointment by the Head of State and
appointment by the Government. Thus, in the Netherlands, the Minister of Justice is politically
responsible for the appointments by Royal Decree and, therefore, will also countersign the
appointments. As pointed out above, this method may function in a system of settled judicial
traditions but its introduction in new democracies would clearly raise concern.
16. Another option is direct appointment (not only a proposal) made by a judicial council. For
example in Italy and Portugal the judicial council has the power to appoint, assign, transfer and
promote the judges of the courts of law and to exercise disciplinary control over them. In
Bulgaria judges, prosecutors and investigating magistrates are appointed by the Supreme
Judicial Council. In Croatia judges are appointed and relieved of duty by the State Judicial
Council. In Cyprus the appointment, promotion, transfer, termination of appointment, dismissal
and disciplinary matters of judicial officers are exclusively within the competence of the
Supreme Council of Judicature. In “the Former Yugoslav Republic of Macedonia” judges and
court presidents shall be elected and dismissed by the Judicial Council. In Turkey, the Supreme
Council of Judges and Public Prosecutors is competent for the appointment of judges, transfers
to other posts, their promotion and disciplinary matters. The Hungarian Act on the Organisation
5
In Italy, the decree by the President of the Republic who is also the President of the Judicial Council is a mere
formality.
6
Venice Commission, Opinion on the Provisions on the Judiciary in the Draft Constitution of the Republic of
Serbia, CDL-AD(2005)023, para. 17.
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and Administration of Courts (Act LXVI of 1997) set up the National Judicial Council exercising
the power of court administration including the appointment of judges.
17. To the extent that the independence or autonomy of the judicial council is ensured, the
direct appointment of judges by the judicial council is clearly a valid model.
The role of a judicial council in the appointment procedure
18. According to opinion No 1 (2001) of the CCEJ, “every decision relating to a judge’s
appointment or career should be based on objective criteria and be either taken by an
independent authority or subject to guarantees to ensure that it is not taken other than on the
basis of such criteria.”
19. The European Charter on the statute for judges adopted in Strasbourg in July 1998
(DAJ/DOC(98)23) states: “In respect of every decision affecting the selection, recruitment,
appointment, career progress or termination of office of a judge, the statute envisages the
intervention of an authority independent of the executive and legislative powers within which at
least one half of those who sit are judges elected by their peers following methods
guaranteeing the widest representation of the judiciary.” According to the Explanatory
Memorandum of the European Charter, the term “intervention” of an independent authority
means an opinion, recommendation or proposal as well as an actual decision.
20. The CCEJ commends the standards set by the European Charter “in so far as it advocated
the intervention (in a sense wide enough to include an opinion, recommendation or proposal as
well as an actual decision) of an independent authority with substantial judicial representation
chosen democratically by other judges”.
21. Regardless of the appointment system used, many European States have introduced a
special body (high judicial council) with an exclusive or lesser role in respect of judicial
appointments.7
22. “Many European democracies have incorporated a politically neutral High Council of
Justice or an equivalent body into their legal systems - sometimes as an integral part of their
Constitution - as an effective instrument to serve as a watchdog of basic democratic principles.
These include the autonomy and independence of the judiciary, the role of the judiciary in the
safeguarding of fundamental freedoms and rights, and the maintaining of a continuous debate
on the role of the judiciary within a democratic system. Its autonomy and independence should
be material and real as a concrete affirmation and manifestation of the separation of powers of
the State.” 8
23. The mere existence of a high judicial council can not automatically exclude political
considerations in the appointment process. For example “in Croatia, a High Judiciary
Council of 11 members (seven judges, two attorneys and two professors) has responsibility for
such appointments, but the Minister of Justice may propose the 11 members to be elected by
the House of Representatives of the Croatian Parliament and the High Judiciary Council has to
consult with the judiciary committee of the Croatian Parliament, controlled by the party forming
the Government for the time being, with regard to any such appointments. Although Article 4 of
7
Albania, Andorra, Belgium, Bulgaria, Cyprus, Georgia, Greece, Denmark, Estonia, Finland, France, Iceland,
Ireland, Italy, Lithuania, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russia (there are
qualification boards, including the Higher Qualification Board, which make recommendations as to the
appointment and – in special cases – the dismissal of judges), Slovakia, Slovenia, “the Former Yugoslav
Republic of Macedonia”, United Kingdom, Ukraine, Turkey.
8
Venice Commission, Opinion on Recent Amendments to the Law on Major Constitutional provisions of the
Republic of Albania, CDL-INF(1998)009, para. 5.
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the amended Croatian Constitution refers to the principle of separation of powers, it also goes
on to state that this includes “all forms of mutual co-operation and reciprocal control of power
holders”, which certainly does not exclude political influence on judicial appointments or
promotion. In Ireland, although there is a judicial appointments commission, political
considerations may still determine which of rival candidates, all approved by the commission, is
or are actually appointed by the Minister of Justice (and the commission has no role in relation
to promotions).” 9
24. The role of the high judicial council can vary to a large extent. For example, the role of such
Councils in Germany may be different depending on the level of courts. There are councils for
judicial appointments which are purely advisory. In Hungary, the Act on the Organisation and
Administration of Courts (Act LXVI of 1997) set up the National Judicial Council exercising the
power of court administration including the appointment of judges. In Italy and in Portugal the
judicial council has the power to appoint, assign, transfer and promote the judges of the courts
of law and to exercise disciplinary control over them. In the Netherlands, the Council for the
Judiciary operates as an intermediate only, while the nominations are in the hands of the court
concerned.
25. The Venice Commission is of the opinion that a judicial council should have a decisive
influence on the appointment and promotion of judges and (maybe via a disciplinary board
set up within the council) on disciplinary measures against them. An appeal against
disciplinary measures to an independent court should be available.
26. While the participation of the judicial council in judicial appointments is crucial it need not
take over the whole administration of the justice system, which can be left to the Ministry of
Justice. “An autonomous Council of Justice that guarantees the independence of the judiciary
does not imply that judges may be self-governing. The management of the administrative
organisation of the judiciary should not necessarily be entirely in the hands of judges.”10
Composition of a judicial council
27. A balance needs to be struck between judicial independence and self-administration on
the one side and the necessary accountability of the judiciary on the other side in order to
avoid negative effects of corporatism within the judiciary. In this context, it is necessary to
ensure that disciplinary procedures against judges are carried out effectively and are not
marred by undue peer restraint. One way to achieve this goal is to establish a judicial council
with a balanced composition of its members.
28. According to the Venice Commission, “there is no standard model that a democratic
country is bound to follow in setting up its Supreme Judicial Council so long as the function of
such a Council falls within the aim to ensure the proper functioning of an independent judiciary
within a democratic State. Though models exist where the involvement of other branches of
power (the legislative and the executive) is outwardly excluded or minimised, such involvement
is in varying degrees recognised by most statutes and is justified by the social content of the
functions of the Supreme Judicial Council and the need to have the administrative
activities of the Judiciary monitored by the other branches of power of the State. It is
obvious that the Judiciary has to be answerable for its actions according to law provided
that proper and fair procedures are provided for and that a removal from office can take
place only for reasons that are substantiated. Nevertheless, it is generally assumed that the
main purpose of the very existence of a Supreme Council of the Judiciary is the protection of
9
CCEJ opinion No 1 (2001) on Standards concerning the Independence of the Judiciary and the Irremovability of
Judges, para.20.
10
Venice Commission, Opinion on Recent Amendments to the Law on Major Constitutional provisions of the
Republic of Albania, CDL-INF (1998)009, para. 12.
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the independence of judges by insulating them from undue pressures from other
powers of the State in matters such as the selection and appointment of judges and the
exercise of disciplinary functions (….).”11
29. As regards the existing practice related to the composition of judicial councils, “a basic rule
appears to be that a large proportion of its membership should be made up of members of the
judiciary and that a fair balance should be struck between members of the judiciary and other
ex officio or elected members.”12 Thus, a substantial element or a majority of the members
of the Judicial Council should be elected by the Judiciary itself. In order to provide for
democratic legitimacy of the Judicial Council, other members should be elected by
Parliament among persons with appropriate legal qualification taking into account
possible conflicts of interest.
30. In general, judicial councils include also members who are not part of the judiciary and
represent other branches of power or the academic or professional sectors. Such a
composition is justified by the fact that “the control of quality and impartiality of justice is a role
that reaches beyond the interests of a particular judge. The Council’s performance of this
control will cause citizens’ confidence in the administration of justice to be raised.” 13 Moreover,
an overwhelming supremacy of the judicial component may raise concerns related to the risks
of “corporatist management”.
31. The participation of the legislative branch in the composition of such an authority is
characteristic. “In a system guided by democratic principles, it seems reasonable that the
Council of Justice should be linked to the representation of the will of the people, as
expressed by Parliament.” 14 In general, the legislative bodies are entitled to elect part of the
members of the high judicial councils among legal professionals,15 however in some systems
members of parliament themselves are members of the judicial council.16 However, there are
also systems where the appointment of judges is in the hands of the executive, and Members
of Parliament are excluded from membership of the Judicial Council.17
32. However, in order to insulate the judicial council from politics its members should not be
active members of parliament. The Venice Commission is also strongly in favour of the
depolitisation of such bodies by providing for a qualified majority for the election of its
parliamentary component.18 This should ensure that a governmental majority cannot fill
vacant posts with its followers. A compromise has to be sought with the opposition, which is
more likely to bring about a balanced and professional composition.
33. Although the presence of the members of the executive power in the judicial councils might
raise confidence-related concerns, such practice is quite common. This is the case for example
in France (the President of the Republic is the President of the Council, the Minister of Justice
11
Venice Commission, Opinion on the Reform of the Judiciary in Bulgaria, CDL-INF(1999)005, para. 28.
Venice Commission, Opinion on Recent Amendments to the Law on Major Constitutional provisions of the
Republic of Albania, CDL-INF(1998)009, para. 12.
13
Venice Commission, Opinion on Recent Amendments to the Law on Major Constitutional provisions of the
Republic of Albania, CDL-INF(1998)009, para. 9.
14
ibid.
15
For example in Bulgaria (“practicing lawyers of high professional and moral integrity with at least 15 years of
professional experience”), Italy (“among full university professors of law and lawyers after fifteen years of practice“)
and Slovenia (“Five members shall be elected by the vote of the National Assembly on the nomination of the
President of the Republic from amongst practising lawyers, professors of law and other lawyers. Six members shall
be elected from amongst judges holding permanent judicial office.")
16
For example in Georgia, Hungary.
17
The Netherlands, with the exception of the appointment of members of the Court of Cassation, which is in the
hands of Parliament.
18
Venice Commission, Opinion on the Draft Law on Amendments to the Judicial System Act of Bulgaria, CDL-AD
(2002) 015,para. 5.
12
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is its ex officio Vice-President), in Bulgaria (where the meetings of the Supreme Judicial Council
are chaired by the Minister of Justice without a right to vote), in Romania (the proceedings for
nomination of candidacies for appointment shall be presided over by the Minister of Justice,
who shall have no right to vote). In Turkey, the Minister of Justice and the under-secretary of
the Ministry of Justice are ex-officio members of the Supreme Council of Judges and Public
Prosecutors; the other five members of the Council are elected by the two highest courts (Court
of Cassation and the Council of State). Such presence does not seem, in itself, to impair the
independence of the council, according to the opinion of the Venice Commission. However, the
Minister of Justice should not participate in all the council’s decisions, for example, the
ones relating to disciplinary measures.19
34. "The presence of the Minister of Justice on the Council is of some concern, as regards
matters relating to the transfer and disciplinary measures taken in respect of judges at the first
level, at the appeal stage and prosecutors. The nomination of these judges and prosecutors
has been exclusively entrusted to the High Council of Justice, thereby removing these
decisions from undue political influence. However, it is advisable that the Minister of Justice
should not be involved in decisions concerning the transfer of judges and disciplinary measures
against judges, as this could lead to inappropriate interference by the Government.”20
Chair of the Council
35. It is necessary to ensure that the chair of the judicial council is exercised by an impartial
person who is not close to party politics. Therefore, in parliamentary systems where the
president / head of state has more formal powers there is no objection to attributing the chair of
the judicial council to the head of state, whereas in (semi-) presidential systems, the chair of
the council could be elected by the Council itself from among the non judicial members
of the council. Such a solution could bring about a balance between the necessary
independence of the chair and the need to avoid possible corporatist tendencies within the
council.
Appointment basis
36. Due consideration should also be given to the basis of judicial appointments and
promotions. In a number of countries judges are appointed based on the results of a
competitive examination,21 in others they are selected from the experienced practitioners.22 A
priori, both categories of selection can raise questions. It could be argued whether the
examination should be the sole grounds for appointment or regard should be given to the
candidate’s personal qualities and experience as well. As for the selection of judges from a pool
of experienced practitioners, it could raise concerns as regards to the objectivity of the selection
procedure.
37. In its opinion No 1 (2001) on Standards concerning the Independence of the Judiciary and
the Irremovability of Judges the Consultative Council of European Judges suggests that “the
authorities responsible in member States for making and advising on appointments and
promotions should now introduce, publish and give effect to objective criteria, with the aim of
ensuring that the selection and career of judges are ‘based on merit, having regard to
19
Thus, in the Netherlands, members of Government are excluded from membership in the Council for the
Judiciary, while disciplinary measures are taken by the judiciary itself.
20
Venice Commission, Opinion on Recent Amendments to the Law on Major Constitutional provisions of the
Republic of Albania, CDL-INF (1998)09, para. 16.
21
For example in Italy, where this principle is established in the Constitution (Article 106).
22
For example in Cyprus, Malta, the United Kingdom. In the Netherlands, both procedures are applied in parallel.
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qualifications, integrity, ability and efficiency’. Once this is done, those bodies or authorities
responsible for any appointment or promotion will be obliged to act accordingly, and it will then
at least be possible to scrutinize the content of the criteria adopted and their practical effect.”
Appointment for a probationary period
38. The European Charter on the statute for judges states as follows “Clearly the existence of
probationary periods or renewal requirements presents difficulties if not dangers from the angle
of the independence and impartiality of the judge in question, who is hoping to be established in
post or to have his or her contract renewed”.
39. The Universal Declaration on the Independence of Justice, adopted in Montreal in June
1983 by the World Conference on the Independence of Justice states: “The appointment of
temporary judges and the appointment of judges for probationary periods is inconsistent with
judicial independence. Where such appointments exist, they should be phased out
gradually”.
40. The Venice Commission considers that setting probationary periods can undermine
the independence of judges, since they might feel under pressure to decide cases in a
particular way: “A decision of the Appeal Court of the High Court of Justiciary of Scotland (Starr
v Ruxton, [2000] H.R.L.R 191; see also Millar v Dickson [2001] H.R.L.R 1401) illustrates the
sort of difficulties that can arise. In that case the Scottish court held that the guarantee of trial
before an independent tribunal in Article 6(1) of the European Convention on Human Rights
was not satisfied by a criminal trial before a temporary sheriff who was appointed for a period of
one year and was subject to discretion in the executive not to reappoint him. The case does not
perhaps go so far as to suggest that a temporary or removable judge could in no circumstances
be an independent tribunal within the meaning of the Convention but it certainly points to the
desirability of ensuring that a temporary judge is guaranteed permanent appointment except in
circumstances which would have justified removal from office in the case of a permanent judge.
Otherwise he or she cannot be regarded as truly independent.”23
41. This should not be interpreted as excluding all possibilities for establishing temporary
judges. In countries with relatively new judicial systems there might be a practical need to first
ascertain whether a judge is really able to carry out his or her functions effectively before
permanent appointment. If probationary appointments are considered indispensable, a “refusal
to confirm the judge in office should be made according to objective criteria and with the
same procedural safeguards as apply where a judge is to be removed from office”.24
42. The main idea is to exclude the factors that could challenge the impartiality of judges:
“despite the laudable aim of ensuring high standards through a system of evaluation, it is
notoriously difficult to reconcile the independence of the judge with a system of
performance appraisal. If one must choose between the two, judicial independence is
the crucial value.”25
43. In order to reconcile the need of probation / evaluation with the independence of judges, it
should be pointed out that some countries like Austria have established a system whereby
candidate judges are being evaluated during a probationary period during which they can assist
in the preparation of judgements but they can not yet take judicial decisions which are reserved
to permanent judges.
23
Venice Commission, Opinion on Draft Constitutional Amendments concerning the Reform of the Judicial
System in “the Former Yugoslav Republic of Macedonia”, CDL-AD(2005)038, para. 23.
24
Idem, para. 30.
25
Idem. para. 29.
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Conclusions
44. In Europe, a variety of different systems for judicial appointments exist and that there is not
a single model that would apply to all countries.
45. In older democracies, the executive power has sometimes a decisive influence on judicial
appointments. Such systems may work well in practice and allow for an independent judiciary
because these powers are restrained by legal culture and traditions, which have grown over a
long time.
46. New democracies, however, did not yet have a chance to develop these traditions, which
can prevent abuse, and therefore, at least in these countries, explicit constitutional and legal
provisions are needed as a safeguard to prevent political abuse in the appointment of
judges.
47. Appointments of judges of ordinary (non-constitutional) courts are not an appropriate
subject for a vote by Parliament because the danger that political considerations prevail over
the objective merits of a candidate cannot be excluded.
48. An appropriate method for guaranteeing judicial independence is the establishment of a
judicial council, which should be endowed with constitutional guarantees for its
composition, powers and autonomy.
49. Such a Council should have a decisive influence on the appointment and promotion of
judges and disciplinary measures against them.
50. A substantial element or a majority of the members of the judicial council should be
elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial
Council, other members should be elected by Parliament among persons with appropriate legal
qualifications.
51. A balance needs to be struck between judicial independence and self-administration on
the one side and the necessary accountability of the judiciary on the other side in order to
avoid negative effects of corporatism within the judiciary. In this context, it is necessary to
ensure that disciplinary procedures against judges are carried out effectively and are not
marred by undue peer restraint.